The second-place candidate in the high-profile South Florida congressional primary race that was settled by only five votes, and took weeks to resolve after Election Day on Nov. 2, is asking a court to overturn the results.
Dale Holness, who lost the congressional contest to Sheila Cherfilus-McCormick by 0.01% of the votes, wants a court to throw out her victory. In a lawsuit offering three different arguments, Holness asserts she is “ineligible to hold office.”
Among Holness’ claims: that one of Cherfilus-McCormick’s campaign promises — her support for a government program to give $1,000 payments to most adults — amounted to an attempt to bribe voters.
Additionally, Holness said that at least 18 mail ballots from military voters were improperly rejected by Broward County elections officials and he wants a judge to require their counting. Even a small number of additional ballots could potentially change the result.
And, he asserted that Cherfilus-McCormick’s failure to file a required financial disclosure with the Clerk of the U.S. House before people voted disqualifies her. Many candidates don’t file the disclosures.
The effort is exceedingly unlikely to work, said Juan-Carlos “J.C.” Planas, an attorney who specializes in Florida election law.
“This is like a Hail Mary pass — and throwing the ball while your wide receiver is still on the 40-yard line,” Planas said. “A judge needs to see something that is a crystal clear allegation, or else they’re going to dismiss these cases right off the bat. And this complaint just doesn’t do that. I don’t see where this goes anywhere.”
Planas said the argument about the military ballots is the only issue that might have a chance of success, though even that would be small. Overall, he said, the complaint appears as if “you’re throwing everything but the kitchen sink to see what sticks rather than going with your one decent argument, which is they shouldn’t have rejected these votes.”
Planas was a state representative from Miami-Dade County from 2002 to 2010. In addition to practicing election law, he’s taught an election-law course at St. Thomas University Law School.
The chronology
The state Elections Canvassing Commission certified Cherfilus-McCormick the winner on Nov. 19, but Holness has not yet conceded. On Nov. 12, after Broward Supervisor of Elections Joe Scott said Cherfilus-McCormick was the “apparent” winner of the contest, Holness demurred when a South Florida Sun Sentinel reporter asked if he planned to file a lawsuit contesting the results. He said he would be consulting his attorneys.
The answer came in a lawsuit filed on Thanksgiving Eve, in which he said Cherfilus-McCormick “purportedly won” the primary. In another passage, the Holness lawsuit states that she “won the Democratic primary special election and became the Democratic nominee for Congressional District 20.”
The special general election, to be held Jan. 11, will fill the vacancy created by the April 6 death of longtime Congressman Alcee Hastings. The primary was the pivotal contest — the 20th Congressional District is so overwhelmingly Democratic that winning the primary is tantamount to winning the general election.
The top two vote-getters in the 11-candidate primary were so close that ballots were recounted in both Broward and Palm Beach counties. The 20th Congressional District includes most of the African American and Caribbean American communities in the two counties. Cherfilus-McCormick would be the first Haitian American Democrat elected to Congress.
After Scott declared her the apparent winner, Cherfilus-McCormick said Holness “fought very, very hard. I respect that vigor.”
Campaign promise
A central plank of Cherfilus-McCormick’s campaign was what she called a “People’s Prosperity Plan,” under which the government would provide $1,000 a month to adults earning less than $75,000 a year.
It’s a form of universal basic income, which has been proposed by candidates in the past, including Andrew Yang, an unsuccessful candidate for the 2020 Democratic presidential campaign.
In the congressional race, Holness’ lawsuit asserts Cherfilus-McCormick’s promotion of the plan was “intended to offer a false hope to underserved communities with the intention and purpose of procuring votes in return,” and asserted Chefilus-McCormick “misled voters” with a promise she “knew” was false.
Cherfilus-McCormick said before and after the election she was committed to working toward enactment of such a program, and that the federal government’s child tax credit is a step in that direction.
Planas said he sees no merit to the allegation. “You might as well have sued Andrew Yang for the same thing,” he said.
Financial Disclosure
Cherfilus-McCormick didn’t file the financial disclosure required of all congressional candidates once their campaigns raise at least $5,000. She said in a Nov. 18 interview it would be filed soon.
Candidates not filing the disclosures with the Clerk of the House isn’t particularly unusual, since there’s nothing the House can do to penalize a failure-to-file by someone who isn’t yet a member. Among the six top-tier candidates in the 20th District contest, three filed their financial disclosures before the primary and three didn’t.
Records on file with the Federal Election Commission and the Clerk of the U.S. House show Holness filed his financial disclosure form on Aug. 13, more than three months after he hit the $5,000 threshold.
Holness’ lawsuit noted that Cherfilus-McCormick was the biggest spender in the primary field but “the source of campaign funding has never been made known to the public.”
Planas said court decisions don’t support the notion that a congressional candidate can be deemed ineligible for not complying with a federal disclosure law.
Military votes
Broward County’s three-member elections Canvassing Board voted not to count certain ballots from military personnel that Holness said should have been counted. He said the Canvassing Board “arbitrarily determined” a standard that amounted to “disenfranchising each active duty military voter and their dependents.”
State and federal laws require counting mail votes from overseas voters that arrive up to 10 days after an election, an issue that prompted extensive deliberations from the Canvassing Board on Nov. 12. The issue was whether a handful of military ballots that arrived within the 10 days were from people who actually were stationed overseas.
The Canvassing Board said the law is clear: If there’s no evidence the servicemember was overseas, they don’t get the grace period. Three different attorneys for Holness repeatedly objected to not counting those ballots, thus establishing a record for future legal proceedings. They argued that the Canvassing Board should assume a military voter is overseas and should be counted.
Scott and Judge Deborah Carpenter-Toye, chairwoman of the board, said they couldn’t legally do that. The third member of the board, County Commissioner Michael Udine, who has since started a one-year term as county mayor, voted to count some of the ballots.
In the lawsuit, Holness said the previous Broward supervisor of elections, Peter Antonacci, had a different interpretation: that the 10-day period applied to both overseas and military personnel. (The lawsuit said Antonacci took that position before the November 2018 election. That isn’t possible; Antonacci wasn’t appointed elections supervisor until after the 2018 election.)
Planas said the military ballot issue is the one area where Holness might have an argument. However, he said, it doesn’t appear to make a specific enough allegation to avoid getting dismissed. Also, he said, a case cited as precedent in the Holness lawsuit makes clear that even if the Canvassing Board was incorrect, Holness would have to prove that the board abused its discretion. “Whether or not the Canvassing Board was right or wrong in not counting the ballots isn’t the issue. It’s whether the Canvassing Board abused its discretion.”
The lawsuit said there were 12 active duty military ballots and six military dependent ballots received by the deadline and rejected by the Canvassing Board. Unstated in the Holness lawsuit is a political calculation: He performed better than Cherfilus-McCormick in the Broward part of the district, so any additional ballots from Broward voters could theoretically tip the outcome to him.
As to the theoretical possibility the uncounted ballots would change the outcome, Planas said Holness would have to win at such an improbably high percentage that it’s unlikely a judge is “going to waste judicial labor” on the issue.
Contest
Cherfilus-McCormick was declared the winner over Holness by five votes — out of 49,082 cast.
It’s the first time Cherfilus-McCormick, a lawyer and CEO of a home health care company, has won an election. She unsuccessfully challenged Hastings in the 2018 and 2020 Democratic primaries.
She touted multiple progressive policies during the primary besides the People’s Prosperity Plan. Among them Medicare for All and a Green New Deal.
The other candidates included six current or former elected officials, who among them had been elected to office 26 times in Broward and Palm Beach counties.
Holness, a Broward County commissioner who works in real estate, previously served on the Lauderhill City Commission. He had to submit an irrevocable resignation from his County Commission seat in order to run for Congress.
Legal issues
Holness’ lawsuit was filed in Broward County Circuit Court against Cherfilus-McCormick, Broward Supervisor of Elections Joe Scott, the Broward elections Canvassing Board and the state Elections Canvassing Commission by attorneys Don James of Coral Gables and Roshawn Banks of Sunrise.
“We believe this is a baseless complaint that the court will dismiss quickly,” Cherfilus-McCormick legal representative Larry Davis said.
Scott said via text message his office’s policy is not to comment on pending litigation.
The Clerk of Courts website shows it was assigned to Circuit Judge Sandra Perlman.
Though it included the state Canvassing Commission — the body that officially certified the results — the case was not filed in Leon County, where the commission meets. And it doesn’t include the Palm Beach County supervisor of elections or Canvassing Board.
It isn’t the first court case involving the closely contested primary. Before the Canvassing Board met on Nov. 12, Cherfilus-McCormick went to court seeking to block counting of three vote-by-mail ballots in Broward County. Circuit Judge Fabienne Fahnestock rejected the request to block the counting.
It later turned out those three ballots didn’t alter the results; all three went to other candidates.
During the recount and previous court case, Cherfilus-McCormick assembled a legal team with extensive experience in election law and litigation, including Davis, Benedict Kuehne, Chris Sautter, Jason Blank, Jason Zimmerman and Mitch Ceasar.
Staff writer Rafael Olmeda contributed to this report.
Anthony Man can be reached at aman@sunsentinel.com or on Twitter @browardpolitics
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